MIGUEL CAMPOS, III v. THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

    NUMBERS 13-04-188-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MIGUEL CAMPOS, III, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court

of Bee County, Texas.

MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo and Garza

Memorandum Opinion by Justice Castillo

Appellant Miguel Campos, III, appeals the judgment of conviction and sentence for the offense of failure to stop and render aid in which the trial court revoked his community supervision.[2] We conclude that the appeal is frivolous and without merit. We affirm.

I. BACKGROUND

On December 14, 2000, Campos pleaded guilty to a two count indictment alleging failure to stop and render aid after a vehicular accident involving injuries to two occupants in the other vehicle. Pursuant to an agreed punishment recommendation, the trial court deferred adjudication, assessed a fine of $1,000, and, after a pre-sentence investigation, placed Campos on community supervision for a term of eight years. During the term of this deferred adjudication probation, the State filed a motion to adjudicate guilt asserting Campos violated the terms of his probation. On July 25, 2002, as a result of the State=s motion, which was based in part on a new felony indictment for burglary of a building, the trial court adjudicated Campos guilty, placed Campos on regular community supervision for a term of six years, and assessed a $1,000 fine.

Ultimately, the State filed a motion to revoke Campos=s regular community supervision. On February 19, 2004, following an evidentiary hearing, the trial court revoked community supervision and sentenced Campos to five years confinement in the Texas Department of Criminal JusticeBInstitutional Division. Campos filed a timely notice of appeal. Campos=s court-appointed appellate counsel filed a brief in which he concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. DISPOSITION

Campos was required to raise any complaints involving the original plea proceeding in the first case, in which the trial court imposed deferred adjudication probation, through an appeal taken at the time. See Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Supp. 2003); see also Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). He did not do so. Further, no appeal lies from the trial court=s decision to adjudicate guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2004-05); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Campos also could have appealed, at the time, the trial court=s imposition of regular community supervision, but he did not do so. See Corley v. State, 782 S.W.2d 859, 860 (Tex. Crim. App. 1989). Thus, we would be required to overrule as untimely any arguable issues in the original imposition of deferred adjudication probation or the imposition of regular community supervision. See Tex. R. App. P. 26.2(a). However, Campos=s appeal requires exercise of our review power to the extent it relates to the revocation of his community supervision after his plea of true. See Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998). We turn first to Anders counsel=s professional evaluation of any arguable issues on appeal.

A. Anders Brief

Court-appointed counsel filed a brief in which he concludes that the appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel has certified that (1) he diligently reviewed the entire appellate record; (2) in his opinion, the appeal is frivolous because the record reflects no reversible error; (3) in his opinion, there are no grounds on which an appeal can be predicated; (4) he served a copy of the appellate brief on Campos at the time of filing; and (5) he informed Campos by accompanying letter that it is the opinion of counsel that the appeal is without merit and that Campos has the right to review the records and file a pro se brief raising any issue on appeal or complaint he may desire. See Anders, 386 U.S. at 744 45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Campos has not filed a pro se brief. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975).

Counsel has caused to be provided as part of the appellate record a clerk=s record of the proceedings of each stage of the case, including the initial plea, the initial sentencing, the motion to adjudicate guilt and the sentencing, the motions to revoke community supervision, the judgment adjudicating guilt, and the final judgment revoking community supervision. Counsel has caused to be provided a reporter=s record of the hearing on the State=s motion to revoke. In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002). In the appellate brief, counsel asserts there are no arguable points of error.

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel=s brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). While arguable grounds of error should be advanced by counsel as required by Anders, if there are any, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client, or to urge reversal if in fact counsel finds no arguable issue to appeal. Id. We hold that counsel=s brief is not the Aconclusory statement@ decried by Anders. Id.

Next, we independently review the record for error, as we must, with regard to the regular community supervision revocation proceedings. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christi 2002, no pet.).

B. Independent Review of the Record

The State=s motion to revoke alleged that Campos violated the terms and conditions of his community supervision ordered in both cases that required that he: (1) neither commit nor be convicted of any offense against the laws of the State of Texas or the United States or any other state, (2) avoid injurious habits and abstain from the use of controlled substances or dangerous drugs not prescribed by a physician, (3) abstain from the consumption of alcohol, and (4) observe a curfew and remain in his residence from 10:00 p.m. until 5:30 a.m. The State alleged Campos violated these terms and conditions by (1) possessing and using cocaine, (2) possessing and using marijuana, (3) appearing in a public place under the influence of an alcoholic beverage, and (4) appearing in a public place outside of curfew hours.

Campos pleaded true to each of the allegations. The trial court accepted Campos=s plea of true and found true the allegations that he violated the terms and conditions of his community supervision.

Campos=s plea of true supported revocation of his community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). Moreover, our review of the record reveals no jurisdictional defects in the revocation proceeding. The indictment conferred jurisdiction on the trial court and provided Campos with sufficient notice. Tex. Const. art. V, ' 12; Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2004-05); Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997). Further, the motion to revoke provided Campos with sufficient notice of the violations alleged by the State and satisfied the requisites of due process. See Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977). Also, the records reveal that the trial court properly admonished Campos before he pleaded true and that his plea of true was knowing and voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). We find no arguable error in the revocation proceeding. During the sentencing phase, defense counsel asked the trial court to assess a four-year term of imprisonment. Campos testified that his main problem was substance abuse. He admitted he was not successful at probation. The court revoked community supervision and imposed penitentiary time. We review a sentence imposed by the trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). As a general rule, to preserve error for appellate review, Campos must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Campos did not object at sentencing on any basis. We find that he forfeited any challenge to the sentence imposed in the case. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced at the revocation proceeding. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Further, the sentence is not an illegal sentence. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (legality of sentence as authorized by law). We find no arguable error in the sentencing phase of the revocation proceedings.

C. Conclusion

Accordingly, our independent review of the record finds that Campos=s appeal is frivolous. We conclude that the appeal is without merit. We affirm the judgment and sentence of the trial court.

D. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.1991) (noting that Anders brief should be filed with request for withdrawal from case). Counsel in this case has requested to withdraw from further representation of Campos on appeal. We hereby order counsel to advise Campos of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We grant counsel=s motion to withdraw as court-appointed counsel on appeal.

ERRLINDA CASTILLO

Justice

Do Not Publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 30th day of June, 2005.

[1] See Tex. R. App. P. 47.2, 47.4.

[2] Without enhancement, the offense of failure to stop and render aid after an accident resulting in injury or death is punishable by imprisonment in the Texas Department of Criminal Justice for not more than five years, confinement in the county jail for not more than one year, a fine of up to $5,000, or both a fine and term of imprisonment or confinement. See Tex. Transp. Code Ann. ' 550.021(c) (Vernon 1999).